The Tyranny of Clichés: How Liberals Cheat in the War of Ideas (26 page)

These deliberate “legal fictions” and absurdly elastic interpretations were smuggled in at such a rate and with such audacity that they eventually became the reigning clichés of American legal life. Oliver Wendell Holmes, Jr., proclaimed that the “provisions of the Constitution… [are] organic living institutions.”
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Supreme Court Justice Felix Frankfurter wrote in a 1952 case, “The Constitution, we cannot recall too often, is an organism.”
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One could go on at great length about the intellectual roots of all this,
and no doubt my own interest in the subject matter is less than wholly healthy.
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But an easier way to understand what the “living constitution” means and has always meant is to simply think of it as Felix the Cat’s magic bag. Under this understanding of the living constitution, if a liberal roots around in there long enough and works hard enough at it, he can find anything he wants in the Constitution. In July 2011, George Will asked a panel of liberal “experts” on the Constitution if it was constitutional to force people to join Weight Watchers. The experts could not bring themselves to say no. The consensus: It’s constitutional if the Supreme Court says it is.
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During the 2000 presidential campaign, when Al Gore was asked what kind of judges he would appoint to the bench, he said that they’d be the sort of magic-bag riflers “who understand that our Constitution is a living and breathing document,” and who grasp that “it was intended by our Founders to be interpreted in the light of the constantly evolving experience of the American people.”
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One such fellow is Ninth Circuit judge Stephen Reinhardt, who admits: “The judgments about the Constitution are value judgments. Judges exercise their own independent value judgments. You reach the answer that essentially your values tell you to reach.”
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U.S.
Supreme Court Justice Sonia Sotomayor, proud of her Puerto Rican heritage, believed that “a wise Latina woman with the richness of her experiences would, more often than not, reach a better conclusion” than some plain old white guy.
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Why? Because she would have special empathy—a magic word for members of the living constitution cult—for certain types of people at the margins of the society. It was this conviction that led President Obama to nominate her for the Supreme Court in the first place. “We need somebody who’s got the heart, the empathy, to recognize what it’s like to be a young teenage mom, the empathy to understand what it’s like to be poor or African American or gay or disabled or old,” Obama announced during his campaign, “and that’s the criterion by which I’ll be selecting my judges.”
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A few years earlier, then senator Obama opposed the nomination of U.S. Supreme Court Chief Justice Roberts on the grounds that he lacked empathy. In the “truly difficult” cases, Obama reasoned, a judge must rely upon “one’s deepest values, one’s core concerns, one’s broader perspectives on how the world works, and the depth and breadth of one’s empathy.” In short, “the critical ingredient is supplied by what is in the judge’s heart.”
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This all sounds lovely. If you were looking to fill the position of king or czar or numinously wonderful gay next-door neighbor on a sitcom, Obama’s criteria might make for a pretty good summation of what you’re after. But judges aren’t kings or czars, they’re
judges
. If the truly defining qualification for judges are their values or their level of empathy for certain aggrieved groups, then why bother sending lawyers to the Supreme Court in the first place? The very instance of a case making it all the way to the Supreme Court is already a sign that it is among the “truly difficult” ones. If heart is all that matters, why not assemble a panel of philosophers, ethicists, and social workers, or a mix-and-match grab bag of superterrific people like on a special episode of
Oprah
? This might seem ridiculous, but with a living, ungrounded Constitution as your guide, it is almost impossible to make a grounded argument for why such a system would not be desirable, if not preferable.

Oh, come on, complain the serious defenders of the living Constitution. First of all, this depiction of the living Constitution is a straw man. For instance, Michael C. Dorf, a law professor at Cornell University, says that conservatives are simply making it up when they complain that living constitutionalists are imposing their own values.
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It’s difficult to take this rejoinder too seriously when the liberal, con-law professor, who also happens to be president of the United States, plainly says that’s what he is looking for.

More to the point, it’s quite obvious that believers in the “organic” Constitution do exactly that. Oliver Wendell Holmes found the forced sterilization of Americans constitutional in
Buck v. Bell
because that was his preferred policy approach, as historian William Leuchenburg has demonstrated at length.
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“Three generations of imbeciles is enough,” Holmes wrote without regard to legal reasoning or precedent. Shortly afterward, Holmes wrote to Harold Laski, “I… delivered an opinion upholding the constitutionality of a state law for sterilizing imbeciles the other day—and felt
that I was getting near the
first principle of real reform.
”
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Why “the first principle of real reform” requires the State be able to sterilize whomever it wishes, or why judges should concern themselves with advancing the first principles of “real reform” in the first place, Holmes does not say.

Dorf has a second argument that, while more interesting and sophisticated, is no more persuasive. “Living-Constitutionalists,” he writes, “believe that while the original understanding has some bearing on the Constitution’s contemporary meaning, it is not the whole story. For living-Constitutionalists, the act of ratification by people who are long dead, and whose numbers did not include any women or enslaved African-Americans, does not suffice to make the Constitution effective today. For us living-Constitutionalists, the Constitution’s current authority derives at least in substantial part from the fact that we the living people accept it as authoritative.” And since we the living are the ones who matter, then “the way in which contemporary Americans understand the Constitution’s language” is really important. “Understood in this way,” he continues, echoing arguments made by Cass Sunstein and others, “the notion of a living Constitution is simply an effort to interpret the Constitution, not to replace it.”
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Again, it’s an interesting argument, and perfectly progressive in its thinly veiled contempt for both the past and the idea that we can be born into a bond we didn’t vote on ourselves. But ultimately this is a lot of smoke and mirrors deployed to conceal Felix the Cat’s magic bag. Simply calling it “interpretation” instead of “replacement” doesn’t mean that in practice the former is not synonymous with the latter. If you can find new rights and powers for the government in the document no one ever imagined before, then interpretation
is
replacement. And again, if judges are nothing more than polysyllabic barometers of the zeitgeist, why appoint judges at all? There are plenty of pollsters better equipped to understand what Americans think about the Constitution. Indeed, why have a Supreme Court if all such questions should be decided democratically?

But hold on, Dorf and others all concede that
some
things in the Constitution are binding. “Originalists and living-Constitutionalists both agree that where the constitutional text is clear, it controls. For example,” he writes, “Article II states that no person under the age of 35 can be
President, and no champion of the living Constitution would argue that nonetheless an especially precocious 32-year-old should be deemed Presidency-eligible simply because she dislikes the textual limit.”
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Elena Kagan trotted out the same argument in her confirmation hearings.

Well, great. If all we need are people who can identify where “the text is clear” all the more reason to appoint people from random walks of life. I have no doubt that your average poor, gay, black plumber is perfectly smart enough to read and comprehend the bits of the Constitution where the “text is clear.” You don’t need some fancypants law degree to know that the Constitution says you must be thirty-five years old to be elected president. So why find judges who merely feel empathy for plumbers or gay men or blacks or poor people when you can appoint the real thing?

As for the trickier bits that aren’t spelled out in the text, why not put them up to a vote? By all means, let’s have a referendum on which God-given rights unpopular people have at the height of their unpopularity. What could go wrong?

There you go again, warns the progressive, taking things too far when the living Constitution is such a moderate, sensible policy. All these conservative hang-ups must have something to do with an abiding fear of change. “We do not insist that our medicine, our technology, or even our entertainment, all remain in an obsolete state; why would we demand that the law be given such treatment?” asks
Slate
’s legal editor Dahlia Lithwick. “It seems absurd to suggest that we can change the speed limit to reflect improved technology but we cannot interpret the Constitution to reflect improvements in society.”
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Woodrow Wilson said it better when he just shouted “Progress!”

Now rather than rehearse all of the reasons why this is cockeyed nonsense, let me switch courses somewhat and say that I would take these sentiments seriously if they were sincere. But the “living Constitution” is a quintessential tyrannical cliché precisely because the bad faith of its adherents is so glaring. Give the original progressives their due; at least they were honest about what they were after. Today’s living constitutionalists insist that their project has a rich and serious intellectual lineage, but don’t you dare write or say anything that suggests that its intellectual history is actually relevant. They want to claim all of the authority of an intellectual tradition without having to defend or even acknowledge that tradition’s roots
in Darwinism, Hegelianism, and various efforts to make Lady Justice look like Robocop with a garden rake.

Meanwhile, the very same living constitutionalists are the first people to hide behind old Lady Justice’s skirts and invoke the original intent of the Founding Fathers as soon as it becomes advantageous. During the Bush-era debates over the Patriot Act (which ceased being the fighting wedge of fascism when Barack Obama adopted its core provisions), one leading liberal after another suddenly discovered the enduring wisdom of the Founders. One after another they took to the Senate floor to quote Benjamin Franklin’s warning that those who would trade liberty for security will get neither. Well, if the living constitutionalists are right that the Founders couldn’t have foreseen the technological and social changes that would unfold two centuries after ratification, why must we rely on their wisdom when it comes to fighting terrorists? Surely the Constitution must adapt to new and unforeseen challenges?

Another example: Lawrence Tribe, a stout defender of the Constitution’s organic malleability, suddenly invoked the unchanging meaning of the commerce clause in defense of ObamaCare: “Since the New Deal, the court has consistently held that Congress has broad constitutional power to regulate interstate commerce,” the Harvard professor writes in the
New York Times
. “This includes authority over not just goods moving across state lines, but also the economic choices of individuals within states that have significant effects on interstate markets. By that standard, this law’s constitutionality is open and shut.”
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Aha. So apparently the Constitution died in the mid-1930s and must evolve no more?

But nowhere is this “living for me, but dead for thee” Deweyan legal fiction more transparent then in the Left’s view of constitutional amendments. I can’t count how many times I’ve met liberals who’ve defended the living Constitution on the grounds that if it didn’t adapt and change blacks would still be slaves and women wouldn’t have the vote. What these cultured
ignorami
fail to acknowledge is that women got the vote and blacks were emancipated with—wait for it!—constitutional amendments, a broadly democratic procedure carefully spelled out in—you guessed it—the original Constitution.

Conservatives do not oppose changing the Constitution; they simply prefer
to change it through constitutional mechanisms. But the moment conservatives propose amending the Constitution to adapt to changing times, liberals suddenly proclaim horror at the suggestion that we would “tamper” or “tinker” with the glorious genius of the Founding Fathers. Now that America has a welfare state that actively attracts immigrants to take advantage of our generous entitlements, some propose amending the Constitution to get rid of automatic birthright citizenship (making us more like the European countries liberals normally insist we must emulate). The immediate response is indignant horror. “I think it’s horribly dangerous to open up the Constitution, to tamper with the Constitution,”
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shrieked Representative Raul Grijalva, in response to proposed changes to the Fourteenth Amendment. Here’s Angela Kelley of the liberal Center for American Progress on Senator Lindsey Graham, who proposed such an amendment: “He’s not one to tamper with the Constitution, so I’m surprised he would even suggest this.”
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“While everyone recognizes that there are problems with our immigration system in this country,” Elizabeth Wydra of the progressive Constitutional Accountability Center chimed in, “my perspective is: Let’s try to fix this through legislation and not tinker with the genius of our constitutional design.”
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Senator Patrick Leahy, the chairman of the Senate Judiciary Committee, routinely waxes lyrical about the living, breathing, vitality of the Constitution—that is, whenever the question at hand is whether we should appoint progressive lawyers to the bench. “The chairman of the Republican National Committee criticized you last month for agreeing with Justice Thurgood Marshall’s observation that our Constitution as originally drafted was imperfect,” Leahy told Elena Kagan during her confirmation hearings. “The criticism surprised me, because everything you read about the Founders, they knew that they would lay down something that would not cover every foreseeable thing. I mean, how could they possibly foresee what the country is today? They were—they wrote in broad terms. They couldn’t foresee every challenge.”
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